U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cruz M.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120151259 Agency No. NY-14-0500-SSA DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated January 26, 2015, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Assistant District Manager at the Agency's Midtown New York District Office facility in New York, New York. On August 25, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (Black) when: 1. On May 9, 2014, Complainant's District Manager (DM) documented false statements with a racial tone on his appraisal; and 2. On May 17, 2014, during the discussion of the selection process for an Operations Supervisor position, one of the candidates had a thick accent, and DM stated, "Why do we need two people with heavy accents in the office, and we have you," as DM beckoned in the direction of Complainant. DM also stated, "The Grand Central staff needs someone they can relate to." On January 26, 2015, the Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. CONTENTIONS ON APPEAL On appeal, Complainant contends that DM also told him that he had been "blacklisted," which Complainant perceived as a reference to his race. Complainant maintains that DM attempted to thwart his authority by reassigning some of Complainant's direct reports. Complainant also argues that DM has asked him whether he was Jamaican. In response to Complainant's appeal, the Agency contends that Complainant failed to state a claim of harassment based on race because he did not establish that he was an "aggrieved employee." The Agency argues that the Agency correctly found that Complainant's allegations related to common workplace occurrences that were not sufficiently severe or pervasive to rise to the level of a hostile work environment. ANALYSIS AND FINDINGS In its final decision, the Agency determined that Complainant's claims were not sufficiently severe or pervasive to create a hostile work environment. Upon review, we find that the agency improperly addressed the merits of Complainant's complaint. In Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997), the Commission stated that: [a] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant can prove no set of facts in support of the claim which would entitle the complainant to relief. Thus, a claim of harassment based on the complainant's race, color, religion, sex, national origin, age, or disability, should not be dismissed for failure to state a claim where the complainant has made factual allegations which, when construed in the light most favorable to the complainant, i.e., when considered together and treated as true, are sufficient to state a claim . . . In addition, . . . when addressing the merits of a hostile or abusive work environment claim, the trier of fact must consider all relevant factors since no single factor is required to prove a hostile or abusive work environment claim. . . . In order to state a hostile or abusive work environment claim, a complainant must allege facts which, if proven true, would indicate that the complainant may have been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of his or her employment. In the present case, Complainant alleged that over a span of eight days he was subjected to racially charged comments on his performance appraisal and his manager criticized his accent and implied that employees cannot relate to people with accents. Complainant alleged that these actions were taken to discriminate against him based on race. Taking these allegations in the light most favorable to Complainant, clearly he states a claim of harassment. Consequently, the Agency's dismissal of Complainant's complaint was improper, as Complainant has shown an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is VACATED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the ORDER below. ORDER (E1016) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 5-9-2-17 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2015-1259 4 0120151259